My Quick Take: Originalism Makes an Appearance in a Scalia-less Court

One of the more interesting outcomes at this point of the Supreme Court’s term, with the recently departed Antonin Scalia leaving the Court evenly split ideologically, is the opinion in Evenwel v. Abbott. The Court ruled 8-0, affirming the lower court’s ruling, leaving intact total population as the basis for apportionment. Justice Alito and Thomas wrote a concurring opinion, and Thomas, as he is prone to do, wrote another separate concurring opinion.

The case was an effort to change the method of apportionment for one-person, one-vote. The Plaintiff sought to base the calculation solely on eligible voters, instead of allowing state’s to decide for themselves how to calculate apportionment particulalry by using total population, as is the trend. The Court held “that a State may draw its legislative districts based on total population.” Reaffirming the previous precedent as well as the flexibility of arranging intrastate affairs according to their respective republican governments. This case is odd. Since, unlike many, there was no clear cut conservative or liberal position as Rick Hasen explained.

What was surprising about the decision, though, was the analysis throughout the opinion. The majority opinion, written by Ruth Bader Ginsburg, took on tones of originalism. She began her analysis with this:

We begin with constitutional history. At the time of the founding, the Framers confronted a question analogous to the one at issue here: On what basis should congressional districts be allocated to States? The Framers’ solution, now known as the Great Compromise, was to provide each State the same number of seats in the Senate, and to allocate House seats based on States’ total populations.

Perhaps an analysis initiating with the text and history of the Constitution is not itself surprising. But as Josh Blackman pointed out, one person, one vote initially “lacked any legitimate originalist pedigree” To that point, the analysis then turns to a discussion of the Federalist Papers, followed by the debate regarding the 14th Amendment, strong elements of an originalist analysis. Ultimately, the final holding is likely at odds with originalism as it skirts any re-hearing  of the issues in Reynolds v. Sims, the first time the Court held one-person, one-vote, but uses an distinct method for analyzing the how to calculate one-person, one-vote. In other words, one-person, one-vote is not inherently originalist, but this opinion on voter apportionment is.

The Court’s methodology and conclusion are likely in tension with one-person, one-vote. But one-person, one-vote was not the question before the Court, how to calculate apportionment was. However, it is intriguing that original methods would be so prominently used to determine whether or not there is a state must use eligible voters or total population when calculating apportionment. It appears that such an analysis may put Reynolds v. Sims on rocky doctrinal grounds if future cases were to arise on this matter. But the intrigue is from the potential threat this type of analysis may later pose to one-person, one-vote. The only justice willing to foray into this one-person, one-vote tension was Justice Thomas in his lone concurrence. He wrote in part:

In my view, the majority has failed to provide a sound basis for the one-person, one-vote principle because no such basis exists. The Constitution does not prescribe anyone basis for apportionment within States. It instead leaves States significant leeway in apportioning their own districts to equalize total population, to equalize eligible voters, or to promote any other principle consistent with a republican form of government. The majority should recognize the futility of choosing only one of these options. The Constitution leaves the choice to the people alone— not to this Court.

By and large his analysis went unanswered by the Court. This has been a trend with Justice Thomas, often writing a lone concurrence or dissent, frequently expanding the presented question to address the tension between the Court’s decisions and the original constitutional meaning. Thomas is also the lone consistent originalist remaining on the Court.

However, that is what makes this case so interesting. Despite being the lone labeled originalist, the entire Court adopted an orginialist approach. Which just goes to show how far originalism has come as a theory of jurisprudence. Even marginal adoption from the Court is a testament to the staying power of originalism and Scalia’s influence.

In all three opinions written for this case we find degrees of originalism. Which, in the aftermath of Scalia’s death is a bit surprising as many pontificated on the uncertain future of originalism, even calling it dead. Yet, in this decision we see the influence of originalism, as a theory of jurisprudence, is not so easily dismissed. Where it goes from here is hard to say, but if this case is any indication, we may find similar reasoning employed by the Court in future decisions.

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